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THOMAS v. CITY OF CHICAGO

March 30, 2001

CHARLES THOMAS, PLAINTIFF,
V.
CITY OF CHICAGO, DEFENDANT.



The opinion of the court was delivered by: Lefkow, District Judge.

MEMORANDUM OPINION & ORDER

Defendant City of Chicago ("the City") presently moves to dismiss plaintiff's amended four count pro se complaint pursuant to Federal Rule of Civil procedure 12(b)(6) or, alternatively, strike counts II through IV pursuant to Federal Rule of Civil procedure 12(f). For the reasons articulated below, the court dismisses counts III and IV and denies the City's motion for counts I and II.

STANDARDS

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. General Electric Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). Dismissal is appropriate only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of its claim that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 4546, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Kennedy v. Nat'l Juvenile Det. Assoc., 187 F.3d 690, 695 (7th Cir. 1999). In ruling on the motion, the court accepts as true all well pleaded facts alleged in the complaint, and it draws all reasonable inferences from those facts in favor of the plaintiff. Jackson v. E.J. Brach Corp., 176 F.3d 971, 977 (7th Cir. 1999); Zernke v. City of Chicago, 100 F.3d 511, 513 (7th Cir. 1996). With regard to Federal Rule of Civil Procedure 12(f), that rule provides that "the court may order stricken from any pleading . . . any redundant, immaterial, impertinent, or scandalous matter." The court generally disfavors motions to strike. WTM, Inc. v. Henneck, 125 F. Supp.2d 864, 869 (N.D.Ill. 2000).

BACKGROUND

Title 13 of the Municipal Code of Chicago (the "Ordinance") prohibits the use of burglar bars that prevent egress from a residence.*fn1 Plaintiff, an African American, is a tenant in a Chicago apartment building cited for violating this Ordinance. On July 20, 1999, plaintiff filed this lawsuit alleging that the City violated his equal protection rights because the City does not equally enforce the Ordinance on all races in Chicago. On January 20, 2000, Judge Norgle granted the City's Motion to Dismiss because plaintiff had failed to allege sufficient facts to support a claim of race discrimination. Plaintiff was granted leave to amend and filed the amended complaint presently before this court on March 9, 2000.

Plaintiffs amended complaint contains four separate "issues," which this court will refer to as "counts." Count I alleges that the City's "burglar bar" ordinance violates his equal protection rights because it is only enforced against "certain people." Specifically, plaintiff alleges that the City does not enforce the ordinance against residents of the Bridgeport area. Count I also repeatedly alleges that the City cannot produce evidence showing that it informed its residents of the burglar bar ordinance or that it asked merchants to restrict the sales of burglar bars to the City's residents. Count II alleges that plaintiff received a parking ticket on September 21, 1999 in retaliation for filing this instant lawsuit. Count III alleges that the City of Chicago refuses to allow African Americans to live in Chicago's Bridgeport neighborhood in violation of the Fair Housing Act and Civil Rights law. Count IV alleges that plaintiff was denied due process in connection with plaintiffs 1996 arrest for solicitation of a prostitute.

DISCUSSION

Count I: Equal Protection

In count I, plaintiff alleges that the Ordinance is enforced differently on the basis of race, violating his equal protection rights. (Am. Compl. at 2.) In particular, plaintiff claims that the City cannot prove that it has enforced the Ordinance in Bridgeport, a predominantly white neighborhood. (Id.) Plaintiff also alleges that the City should have provided some form of notice of this Ordinance to merchants who sell burglar bars and to city residents. (Id. at 2-3.)

This case bears a striking resemblance to Anderson v. City of Chicago, 90 F. Supp.2d 926 (N.D.Ill. 1999), where the district court found that a pro se plaintiff had pled an equal protection claim when he alleged that the City of Chicago selectively enforced a city ordinance against him because of his race. The court stated, "[b]ecause it is possible that Anderson could prove that the City singled out his property for citation because of his race, thus engaging in a form of selective prosecution in violation of the equal protection clause, we will not dismiss his equal protection claim at this time." Id. at 928. Like the plaintiff in Anderson, plaintiff here alleges that the City selectively enforced the Ordinance based on race and, therefore, has stated an equal protection claim.*fn2

Count II: Retaliation

In count II, plaintiff alleged that he received a parking ticket on September 21, 1999 from Chicago police officers because his car was blocking an intersection near his residence. (Am. Compl. at 3.) Plaintiff claims that the ticket was given in retaliation for this lawsuit. (Id.)*fn3 Plaintiff alleges that one of the officers said, "I am here to change things." (Id.) Plaintiff added that he continued to park in the same area after complaining to the City's attorney in this matter and received no additional tickets. (Id.)

Count II of plaintiffs complaint bears a striking resemblance to plaintiffs 1995 lawsuit against the City, where he alleged that in retaliation for complaining to Mayor Daley that the police never responded to his call that his home was burglarized, the City issued him three parking tickets. See Thomas v. City of Chicago, No. 95 C 5589, 1996 WL 422275 (N.D.Ill. July 24, 1996). In that case, the court held that plaintiff had failed to state a claim for retaliation for exercising his First Amendment rights because plaintiff failed to allege that his letter to the Mayor touched on matters of public concern. See Lashbrook v. Oerkfitz, 65 F.3d 1339, 1349 (7th Cir. 1995) ("In order to state a claim for retaliation for exercising first amendment rights by petitioning the government for redress, a plaintiff must allege that the petition touched upon matters of public concern.") The ...


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